Erasure Statutes Do Not Erase History

So your criminal record has been erased. Congratulations! Now you’re thinking about bringing a libel action against the news agencies who published stories documenting your arrest, because the local “deemer” statute states that you are deemed never to have been arrested and those embarrassing articles are still available online. Good idea? Have those articles, truthful at the time they were first published, become defamatory in light of recent events? Not according to a recent federal-court opinion out of Connecticut, which rejected Lorraine Martin’s claims for libel, false light, negligent infliction of emotional distress, and invasion of privacy in a case she filed against Hearst Corporation and other media outlets.

Lorraine Martin and her two sons were arrested in August 2010 and charged with possession of narcotics, drug paraphernalia and a controlled substance. Several news outlets published brief accounts of the arrest and charges in print and online. The charges were dismissed in January 2012 and qualified for erasure under Connecticut’s erasure statute which provides that thirteen months after a criminal charge is dismissed, the charge is erased and the person charged is deemed to have never been arrested. Ms. Martin asserted that because she qualified for erasure and had been deemed to have never been arrested, the defendants’ statements became false and defamatory. Ms. Martin asked the publications to remove the online articles and, when they refused, sued them.

Precepts of statutory construction dictate that the meaning of a statute be ascertained from its text and its relationship to other statutes. If the text is plain and unambiguous, the court will not consider extra-textual evidence. The “Erasure of Criminal Records” statute requires that court records and police and prosecutor records be erased following final judgment in a case in which the defendant is acquitted or the charge is dismissed or where a nolle prosequi is entered. Read as a whole, the statute concerns only the records of courts and law enforcement agencies and imposes requirements on them. For example, the statute prohibits the court clerk from disclosing information about erased charges. The court found that nothing in the statute suggests that the legislature intended to impose requirement on persons who work outside of courts or law enforcement.

The court also examined the statute in context of surrounding statutes which likewise focused on court and law enforcement records and the custodians of those records. Given the plain language of the statute when read in context, the court found that legislature intended to ensure that custodians of criminal records treat persons who qualify for erasure as if they have never been arrested in order to minimize the stigma associated with an arrest. The legislature did not intend to silence private persons who might have obtained arrest information nor did it intend “the sweeping, history-altering design” that Ms. Martin perceived.

Furthermore, the court noted that it must construe statutes in a manner that comports with the constitution. If the erasure statute exposed publishers to defamation claims for publishing true and newsworthy statements, it would be unconstitutional.

Continuing, the judge observed that the erasure statute operates “in the legal sphere, not the historical sphere” and does not “purport to wipe from the public record the fact that certain historical events have taken place. Only in a totalitarian system could law purport to have such a sweeping effect.” Citing a New Jersey case, the court noted that erasure statutes “cannot banish memories.” The bottom line is that Ms. Martin was, in fact, arrested in 2010. That was true at the time it was published and it will always be true.

The court’s rejection of Ms. Martin’s reading of the erasure statute rendered all of her claims insufficient as a matter of law. Her libel claim required publication of a false and defamatory statement. Because no genuine dispute existed as to the truth of the statements at the time they were first published, her claim failed. Likewise, to prove false light in Connecticut, a plaintiff must show that the published statements are not true and are a major misrepresentation. The First Amendment requires that a media defendant be liable for false light only where it publishes highly offensive material without regard to its falsity. Where the matter is true, a defendant is constitutionally protected. Because there was no genuine dispute that the statements were true, the false light claim failed. Ms. Martin’s claim for negligent infliction of emotional distress failed as well because publishing a true article is not negligent. Finally, her invasion of privacy claim failed because the value of a person’s name is not appropriated by mere mention of it in reference to legitimate public activities.

The results of all client matters depend on a variety of factors unique to each matter. Past successes do not predict or guarantee future successes.

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